Reflections of a Former Prosecutor
| Author | David Kirk |
| Published date | 01 April 2014 |
| Date | 01 April 2014 |
| DOI | http://doi.org/10.1350/jcla.2014.78.2.896 |
| Subject Matter | Opinion |
OPINION
Reflections of a Former Prosecutor
David Kirk*
Partner, McGuireWoods LLP
For most of the last eight years I have been a prosecutor, returning to
where I started my legal career between 1976 and 1988, when I was lucky
enough to work for the Office of the Director of Public Prosecutions, of
which the last three years were on secondment to the Attorney-General’s
Office. During that period (1985 to 1988) the Crown Prosecution Service
was set up and took its first faltering steps. Watching its progress from the
comfortable distance of the Law Officers’ Department persuaded me that I
could not possibly consider ‘returning’ to my home base at the end of my
secondment because it had been utterly destroyed and replaced by an
underfunded bureaucratic mess. I went instead into private practice.
Returning to prosecuting, and the public sector, after nearly 20 years in
private practice, was interesting. So much had changed, and the CPS, seen
at first hand, had made enormous strides. Under the leadership of Sir Ken,
now Lord, MacDonald, the organisation appeared confident and self-
assured, and it had received extra funding which made it appear to be
moderately comfortably off. At the same time, processes and procedures
had been transformed so that what had seemed, in the early 1980s, to be
a relatively simple job had become immeasurably, and unnecessarily, more
complicated. There appeared to be two main reasons for this: first, the
impact of the original changes brought about by the Philips Commission
on Criminal Procedure, and subsequent procedural advances (including,
but not limited to, the disclosure provisions in the Criminal Procedure and
Investigations Act 19961); secondly, the intrusion of political and media
pressure into all aspects of prosecution decisions.
The intentions of the Philips Commission, which reported in 1981,2
were widely applauded across party lines. Part 1 of the Report dealt with
police powers, and in particular the proposal to retain the right to silence,
and to tape-record all police interviews. This, and other reports, laid the
ground work for the wide-ranging changes which were brought into being
by the Police and Criminal Evidence Act 1984, and while few would now
contest the principles and procedures of PACE, at the time it marked a sea
change in criminal practice of greater proportions, arguably, than anything
since. In relation to tape-recorded interviews, the Home Secretary, William
Whitelaw, expressed some reservations about both practicalities and cost:
‘Wholesale recording of police interrogations’, he warned, ‘would be a
very expensive business’. That was certainly prescient.
* The views expressed in this article are those of the author and do not necessarily reflect
the views of McGuireWoods LLP or the Journal of Criminal Law.
1 See my views on this legislation in D. Kirk, ‘How Do You Solve a Problem Like
Disclosure’ (2013) 77 JCL 275.
2 Cmnd 8092 (January 1981).
The Journal of Criminal Law (2014) 78 JCL 99–103 99
doi:10.1350/jcla.2014.78.2.896
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